Anna Chandy, J.
1. The appellant Mathai was convicted under section 304 I. P. C. and sentenced to rigorous imprisonment for a term of seven years by the Additional Sessions Judge, Kottayam for having caused the death of one Yohannan by stabbing him at about 6-45 p. m. on 19th June 1962.
2. The prosecution case is that the accused feeling bitter and vengeful towards Yohannan as a result of the quarrel between them over the price of the hide of a cow and also a criminal case between them happened to meet Yohannan at about 6.30 p. m. on 19th June 1962 on the footpath lying near the house of P. W. 3 Scaria when the accused attacked Yohannan, stabbing him a number of times with a malappuram knife M O 2. Yohannan's cries attracted Elias P. W. 1 Mathai P. W. 2, Scaria P. W. 3 and several others to the scene. The first to arrive was P. W. 1 who saw the accused sitting on Yohannan's chest and stabbing him. When P. W. 1 tried to intervene the accused stood up and aimed two stabs at him which were both warded off by P. W. 1 who thereby received some minor injuries on his right hand and wrist. By this time the others arrived at the scene and seeing them approaching the accused ran away from the place carrying with him the knife. The injured Yohannan was removed by P. Ws. 2, 3 and others to the Government Dispensary, Pampady. Yohannan died on the way and his body was taken to the dispensary by 9 p. m. From the hospital P. W. 1 went to the Pampadi Police Station and lodged the information. The accused was arrested the next day.
3. The accused pleads self-defence. According to him he was attacked by Yohannan and P. W. 1 a relation of Yohannan who fisted him and hit him with stones. He was thrown on the ground and Yohannan sat on his chest throttling him while P. W. 1 stood on his thighs. At his juncture apprehening danger to his life he pulled out his knife and waived it hitting Yohannan with it.
4. That Yohannan died as the result of the injuries inflicted by the accused is not disputed. Autopsy revealed that Yohannan had six incised injuries on various parts of the body and an abrasion on the left knee. One of the injuries on the chest had penetrated the pleura and the lung. P. W. 7 the Medical Officer who conducted the autopsy is of the opinion that this was a necessarily fatal injury. It may be noted here that P. W. 1 also had some incised injuries of a minor nature on the right wrist and palm. The accused was also injured. His wound certificate reveals that he had an abrasion on the left temple and scattered abrasions on his left shoulder and right scapular regions.
5. The prosecution examined P. Ws. 1 to3 to prove their version of the incident. The learned Sessions Judge, for very proper reasons, foundthe prosecution version unreliable in several respects including the manner and time of the incident. The Judge has found the so-called eye witnesses P. Ws. 1 to 3 utterly unbelievable. He held that P. W. 1 who asserted that he ran up to see the last stage of the incident was speaking a falsehood and accepted the accused's case that P. W. 1 was there from the beginning and had participated in attacking the accused. The judge was also of the view that P.W. 2 was nowhere at the scene andwas giving false evidence that he saw the accused getting up from the chest of Yohannan and then engaging himself in the struggle with P.W. 1. The evidence of P.W. 3 even if accepted is immaterial since he saw only the fight between the accused and P.W. 1. The learned Judge has disbelieved the prosecution case that the occurrence took place at 6-45 p.m. and accepted the accused's case that it was 8 in the night when he was attacked. He has gone further and held that the time was purposely changed as to make it appear that the witnesses actually saw the incident in the twilight. The learned Judge has also concluded on proper data that
'there are indications of a violent and bitter struggle before Yohannan was finally overpowered'.
He was also right in refusing to accept the prosecution case that the accused was the aggressor. To use his own words,
'there was sufficient cause for the deceased toentertain bitter animosity towards the accusedespecially because on the date of the incident he got a notice from the Circle Inspector of Police to appear before him in connection with a complaint sent by the accused against him and others to the Home Minister'.
After taking into consideration the evidence and the circumstances the learned Judge reached the conclusion that
'it is a case of two pitted against one and the accused was driven into a dangerous situation where he could have apprehended death or grievous hurt and he could very well strike back in defence'.
In spite of all these findings, the learned Judge inexplicably took the accused to task for using more harm than was necessary to meet the situation.
6. The categoric medical opinion that the accused could have inflicted all the stabs only if he was seated on the chest of Yohannan might be responsible for this view. Medical opinion is hardly decisive and often inconclusive because it is primarily an evidence of opinion and not of facts As observed in Anant Chintaman Lagu v. State of Bombay, AIR 1960 S.C. 500 at p. 523:
'To rely upon the findings of the medical man who conducted the post-mortem and of the chemical analyst as decisive of the matter is to render the other evidence entirely fruitless. While the circumstances often speak with unerring certainty, the autopsy and the chemical analysis taken by themselves may be most misleading.'
To my mind, the medical opinion--mostly guess workon non-medical matters need not necessarily be correct. If the assailant was sitting on the chest and facing the victim's face as described by P.W.I. the stabbing on the left hip and the left thigh (injuries Nos. 5 and 6) could not be caused without the assailant moving to and fro. The accused's suggestion that when the deceased was seated on his chest and tried to throttle him he stabbed him on the left side including the left thigh that mighthave been bent is plausible. In the stress of cross-examination the doctor had to say that injuries 1 to 6 on the deceased could be caused in a tussle. When the Public Prosecutor found it to be an inconvenient statement, he managed by means of a suggestive question to make the doctor come out with an explanation as to what she meant by a tussle. The answer about what was meant by a tussle has not rendered the explanation any the more acceptable. One tell-tale circumstance against the medical theory is the presence of abrasions scattered ever the left shoulder and right scapular regions of the accused and the absence of even a single abrasion on the back of the deceased would probabilise the accused's case that he was on the ground and not the deceased. Again the absence of any injury either on the palm or forearm or wrist of the victim though six stabs were inflicted on him seems to support the accused's case that the handa of the deceased were otherwise engaged--may be in throttling the accused.
7. Anyway, this is a typical case where apart from the case of private defence put forward by the accused in both the courts, there is a total absence of evidence to find how the occurrence took place. That it is the duty of the prosecution to prove the accused's guilt is the 'golden thread' in the web of English Criminal Jurisprudence and it is still the basic principle of our Criminal Law. As observed by His Lordship Sinha, J., as he then was, in C. S. D. Swami v. State, AIR 1960 SC 7. It is
'the established principle of criminal jurisprudence that the burden always lies on the prosecution to prove all the ingredients of the offence charged and that the burden never shifts on to the accused to disprove the charge framed against him.'
This is an unfortunate case in which the prosecution witnesses are found to be unreliable, the exact circumstances under which the occurrence took place are seen to have been suppressed by the prosecution and the sequence of events purposely twisted and yet the accused is convicted because the accused honestly advanced a plea of self-defence. It is pointed out that the accused's admission under Section 342 Criminal Procedure Code of having waived the knife is responsible for his conviction. The accused's statement is that when attempted to be throttled to death he waived his knife. To dissect the statement and use only the inculpatory portion is a definite attempt to fill up the void in the prosecution case. To say that you waived the knife when you are throttled is not a plea of guilty or an unreserved acknowledgment of having committed the crime. As observed by the Supreme Court in Narain Singh v. State of Punjab. D/-21-8-1962: (1964) (1) Cri LJ 730(SC) and reported in the latest blue print edition:
'If the accused person in his examination under Section 342 confesses to the commission of the offence charged against him the court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstances appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety. It is not open to the Court to dissect the statement and to pick out a part of the statement which may be in criminative, and then to examine whether the explanation furnished by the accused for his conduct is supported by the evidence on therecord. If the accused admits to have done an act which would but for the explanation furnished by him be an offence, the admission cannot be used against him divorced from the explanation.'
'Where a person accused of committing an offence sets up at his trial a plea that he is protected by one of the exceptions, general or special, in the Indian Penal Code, or any other law defining the offence the burden of proving the exception undoubtedly lies upon him. But this burden is only undertaken by the accused if the prosecution case establishes that in the absence of such a plea he would be guilty of the offence charged. The prosecution case, however, did not by reliableevidence establish affirmatively that Narain Singh had done any act which rendered him liable for the offence of murder. His responsibility, if any, arose only out of the plea raised by him; if the plea amounted to a confession of guilt the Court could convict him relying upon that plea, but if it amounted to admission of facts and raised a plea of justification, the court could not proceed to deal with the case as if the admission of facts which were not part of the prosecution case was true, and the evidence did not warrant the plea of justification.'
On the ground of no evidence alone the accused deserves to be acquitted.
8. Even on the question of self-defence I do not feel that the approach made by the learned Sessions Judge is quite correct. The learned Judge who according to him refused to use the cool bystander's standard in the case of the accused has weighed his right of self-defence in 'golden scales'. He convicted the accused because according to him the accused exceeded the right of self-defence by stabbing the unarmed Yohannan six times. The right of self-defence is a high prized gift granted to the citizens to protect themselves by effective self-resistance against unlawful aggression. No man is expected to fly away when he is attacked. He could fight back and when he apprehends deathor grievous hurt he could see that his adversary is vanquished without modulating his defence stepby step. Faced with a dangerous adversary, no man can possibly act with a detached reflection and under such circumstances if he travels a little beyond the limit, the law protects him and hence courts should not place more restrictions on him than the law demands.
9. In this case, the Harijan accused is waylaid by two sturdy and determined Christians out to wreak vengeance at a time when visibility was poor. Two to one they tussled bitterly and the accused managed to use the knife when he apprehended death or grievous hurt. The place is filled with granite stones used for Kayalas. Yohannan's cousin P.W. 1 was there free to hurl stones at the accused or hit him with them. In these circumstances how can the accused measure out the exact number of stabs necessary to disengage the assailant from whose vicious grip he was attempting to escape? If the accused managed to escape with his life under such circumstances the court is not expected to be illiberal. Both as the case for the prosecution is admittedly notproved and since the accused cannot be said to have abused his right of private defence, I set aside the conviction and acquit the accused. His bail bonds are cancelled and he is set at liberty.